Restorative Justice And Compensatory Jurisprudence In India.docx

Restorative Justice and Compensatory Jurisprudence in India Ankit Sourav Sahoo Assistant Professor Lajpat Rai Law College, Sambalpur University, Odisha ABSTRACT: The dividing boundary between sovereign and non-sovereign function of a state has largely vanished these days. The author endeavours to stress on how the compensatory jurisprudence has grown in India and gradually how the division between the sovereign and non-sovereign functions of the state has been uprooted from Indian jurisprudence. Compensatory Jurisprudence was materialised through the case of Rudul Sah when the Hon'ble Apex Court shattered a link in the chains of strict interpretation and supplied another achievement in the basket of Article 21 to ensure the personal life and liberty of people. Soon after, there were a multitude of case laws mentioned in the current work which empowered the powers of The Apex Court and High Courts to help the victims for the atrocities done by the State or by incapacity of State to take care when there was a duty fixed upon them by law to exercise due care, through proper compensation. The Hon'ble Apex Court has given a multidimensional interpretation to the remedies available under the Constitution of India in such a way which will amplify the avenues of fundamental rights provided to an ordinary human being. This paper tries to examine the instances in which the Courts have granted compensation towards the victims malafide acts perpetrated or allowed to be happened, by or with the connivance of the state or for negligence on part of the State. But the dilemmas and questions of when, and how much compensation is to be given or even it is to be given at all, is still a herculean task. KEYWORDS: Compensatory Jurisprudence, Restorative Justice, State Liability, Victimology, Effective Remedy Introduction: The very basis of justice can be derived from the concepts of liberty, dignity, fraternity and mutual respect in the society. The modern era has witnessed the phenomena of natural rights in the shape of human rights, spread beyond geographical boundaries, which indeed is a big step in the world of Jurisprudence. The compensatory jurisprudence introduced by the Apex Court of India by using its powers conferred under Article 32 of the Constitution of India gathered magnanimous applause, due to the increase of the happenings of political instability, Custodial mistreatment, police brutality, arbitrary detentions, excesses against women, tortures in jails and other important human rights violations. Financial help as compensation is a judicially recognised and a well encouraged way of ensuring justice by the courts for meeting the end of restitution for those who are victimised. Law of torts recognizes damages as a remedy that strengthens rights, allows compensation to be provided, ensures non-repeating of wrong, increase the citizens’ faith on the system of administration of justice in the land and most importantly secures restorative justice. The theory of “corrective justice”, propounded by Aristotle, demands a positive step of financial help in case of any victimisation or trespass by a person into another person’s lawful rights and entitlements. It is taking decades for the victims to get a decree for damages or compensation through civil courts, which is resulting in so much hardship to them. The emergence of compensatory jurisprudence in the light of human rights philosophy is a positive signal indicating that the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedents. The State should make laws in light of 357A of CrPC to provide financial help to victims in every case even during the pendency of the cases. The problems of victims and the situation after the crime are very complex. These problems cannot be solved through the existing provisions. Therefore, the agencies of the criminal justice system should be receptive to the needs of the victims of crime and address their issues sincerely and empathetically1. The Scenario in India: Article 32 of the Constitution of India empowers the Apex Court to grant direction or order or appropriate writ (habeas corpus, mandamus, prohibition, quo-warranto and certiorari) for the protection of any of the rights conferred by the Constitution. The right to approach the Apex Court by appropriate legal method, that is to say, the right to move the Apex Court under Article 32 for the enforcement of any of the rights conferred by Constitution is itself a fundamental right. The idea of correcting a wrong by award of pecuniary benefits (to be paid by the State for its failure to protect the fundamental right of the citizen) has been adopted by the Irish Courts, having a written Constitution, ensuring fundamental rights, but the Indian Constitution, it

1 Srinivasan, Murugesan & Mathew Jane, Eyre. (2007). Victims and the criminal justice system in India: Need for a paradigm shift in the justice system. Temida. 10.

doesn’t contain any provision of remedy of compensation for the infringement of the same. But it has not restricted the Irish Courts from allowing compensation to be paid, not only against private persons guilty of such acts, but also against the State itself. Article 32(1) provides for the right to move the Apex Court by appropriate proceedings for the enforcement of the fundamental rights. The Apex Court under Article 32(2) is free to formulate any way for the enforcement of fundamental right and it has the power to issue any process necessary. The Apex Court may provide assistance, which may include compensation in "some appropriate cases". Under constitution of India, there are provisions for compensation, u/s Article 226 (Right to effective remedy enforceable by the victimised citizens in the High Court of the States) and Article 300 (Tortious liability of the State) to protect citizens from any arbitrariness on behalf of the state. A huge importance was given in the Report of the Committee on Reforms of Criminal Justice System, presided by Justice V. S. Malimath on the necessity to secure “Justice to victims of crime and abuse of power”. The report stated “medical justice to the Bhagalpur blinded victims”, “rehabilitative justice to the communal violence victims” and “compensatory justice to the Union Carbide victims” are instances of the of reliefs and remedies formulated by the Apex Court. There are precedents starting from ‘Failed birth control procedures’ to ‘Negligence of sewage covering’ to 'custodial death' in which cases The Apex Court has granted compensation. Significance in the International context: It is high time the criminal justice system should come up with new methods to provide justice to the crime victims and to safeguard their interest. It should aim to provide such long and necessary assistance to the crime victims that they come back to their previous, active lives. Restorative justice is one of the ways to help the crime victim in order to bring them in the same condition as if the crime has never occurred. The UN approved the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in General Assembly Resolution 40/34 dated 29th November 1985 2 which provides for Access to justice and fair treatment, Restitution and Compensation. The U.N. Congress on Prevention of Crime and Treatment of Offender played a vital part in drafting a declaration of victim’s right. It was inserted on the agenda of the U.N. Congress in Milan held in August-September 1985. The U.N. General Assembly adopted the Basic Principles of Justice for Victims of Crime and Abuse of Power; this declaration is specifically concerned with societal response to the needs of the victim 3. The declaration deals with two focal areas: (a) victims of crime and (b) victims of abuse of power". The first category relates to conventional definition of crime and the declaration lays down norms for providing for certain issues which are as follows. The Declaration recognized the following rights of victim of crime: i. Access to justice and fair treatment - This right includes access to the machineries of justice and to facilitate redressal, right to be informed of victim's rights, right to proper assistance throughout the legal process and right to protection of privacy and safety. ii. Restitution - including return of property of payment for the harm or loss suffered; where public officials or other agents have violated criminal laws, the victims should receive restitution from the State. iii. Compensation - when compensation is not fully available from the offender or other sources, State should provide financial compensation at least in violent crimes, resulting in bodily injury for which national funds should be established. iv. Assistance - victims should receive the necessary material, medical, psychological, and social assistance through governmental, voluntary and community' - based means. Police, justice, health, and social service personnel should receive training in this regard. Certain other convention came up such as in 1983; the compensation should be given to the victim and relative of victim of a violent crime by the state if any other source is not available, in 1985; guidelines provided including responsibility of the authorities to provide help and support to the crime victims such as giving information, protection and compensation, in 1987; to provide support to crime victims and prevention of crime. In 2002, the UN Commission on crime prevention and criminal justice recommended the restorative justice in the criminal justice system. In order to bring the offender and the victim at par, the restorative justice in necessary. Many countries, such as Canada, New Zealand, Australia and South Africa practice it. Restorative justice brings the offender and the victim closer. The offenders are required to repair the damage they have created to the victim. A victim should be compensated no matter what the source is 4. If the state fails to prevent crime then, the state is liable to pay compensation to the victim. According to Jeremy Bentham, due to the presence of the social contract between the state and the citizen, victims of crime should be compensated when their property or person was violated. Thus modern approach of Victimology acknowledge that a crime victim 2 Magnus Lindgren and Vesna Nikolić-Ristanović, Crime Victims: International and Serbian Perspective, Organization for Security and Cooperation in Europe, Page 32 3 Bharat B. Das, Victims in the Criminal Justice System, APH Publishing, 1997, Page 31 4 David J. Cornwell, The Penal Crisis and the Clapham Omnibus: Questions and Answers in Restorative Justice, Waterside Press, 2009, Page 59

has right to be adequately compensated, rehabilitated and repaired irrespective of identification and prosecution of offender and the payment of such compensation should be made by state. 5 Not only should the Criminal Justice system provide economic support but also legal, psychological and social support to the crime victims. France not only provides reparation to the crime victims, but its national organization; L'Institut National d'Aide aux Victimes et de Médiation (INAVEM) provides support to the family members of the victim, information to the victims, psychological help, social support and work for the rights of the victim.6 In this modern era, many nations are endeavouring to facilitate and uplift victims of crimes through pecuniary and social help. The US, The UK, Australia, Canada, South Africa, New Zealand, France are among them. It is clearly understood by the modern society that in order to ensure mental and social help to a victim, Restorative justice, and institutions toiling for upliftment of the victims has become the need of the hour. Gradually, there has sprouted a well enhanced structure of protective International covenants and conferences which tries to ensure justice through compensation. Some of them are: • Article 10 of the American Convention on Human Rights, 1969 provides for Right to Compensation for miscarriage of justice. • Article 8 of the Universal Declaration on Human Rights, 1948 recognizes the right to appropriate compensation. • Article 5, Para 5 of the American Convention on Human Rights, 1969 provides for Right to Compensation which is enforceable by victims of arrest or detention. • Article 3 of the Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1984 provides for Right to Compensation for wrongful conviction. • Article 9 (5) of the international Covenant on Civil and Political Rights, 1966 provides for ‘Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.’ Notable Judicial Trends in India: The earlier view taken by the Indian judiciary that no compensation or monetary relief can be awarded by the court under Article 32 of the Constitution. But, now in a number of cases, the court has awarded compensation to the victims of the infringement of Fundamental Rights. In Khatri vs. State of Bihar7 popularly known as the Bhagalpur blinding case Justice Bhagwati countered the question of compensation. Why should the court not be prepared to forge new tools and devise new remedies for the purpose of indicating the most precious Fundamental Right to life and personal liberty? A new interpretation was innovated through Article 32 and Article 21 of the Constitution, the court ordered the State to meet the expenses of housing those men in blind homes in Delhi. The Apex Court in case of Rudal Shah vs. State of Bihar8 observed that in the exercise of its jurisdiction under Article 32, payment of money in the nature of compensation consequential upon the deprivation of a Fundamental Right to life and liberty of a petitioner. The court further observed that Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of the SC were limited in this context. In Sebastian Hongary vs. Union of India 9 where the Apex Court by a writ of Habeas Corpus required the Government of India to produce two persons before it, who were taken to the military camp by the Jawans of army and allegedly killed by them. Since the government failed to provide relief to the aggrieved wives of the killed persons, the court keeping in view the torture, agony and mental oppression through which the wives of the persons in question had to pass, directed the Union Government to pay Rs. One lakh each to the two women. Further, in Bhim Singh vs. State of J & K and Others10 the Apex Court observed that when a person comes to this Court with a complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free.

5 Status of the Victim in the Criminal Justice System available at http://dcsiwan.bih.nic.in/Report/crime %20victims.pdf accessed on 30-05-2018 6 Waller, I. (2003) Crime Victims: Doing Justice to their Support and Protection. Helsinki: HEUNI 7 AIR 1981 SC 928 8 AIR 1983 SC 1086 9 AIR 1984 SC 1026 10 AIR 1986 SC 494

In Devaki Nandan Prasad v. State of Bihar 11, the petitioner’s pension had been delayed for twelve years. “Exemplary costs” were awarded to the petitioner for ‘intentional, deliberate and motivated’ harassment of the petitioner. Mohan Lal Sharma v. State of U. P. 12, it has been observed that the detenue is entitled to the right to monetary compensation under the patronage of Article 21 of the Constitution of India. State of Maharashtra v. Ravi Kant S. Patil13, handcuffing has been held to mandate compensation as a consequence in the case. Saheli v. Commissioner of Police, Delhi14 wherein the Court held that an action for damages lies for bodily harm, including battery, assault, false imprisonment, physical injuries and death. Nilabati Behera v. State of Orissa 15, the jurisprudential reasoning behind the award of damages in cases of violations of fundamental rights was elucidated in, which can truly be considered as a landmark case in the development of law in this area. M. C. Mehta v. Kamal Nath16, the Apex Court awarded compensation to the victims of pollution. The damages were appropriated under as  damages for restoration of the environment and ecology;  damages to those who may have suffered loss on account of the act of pollution;  Exemplary damages so that other people are detained from causing environmental pollution. Conclusion: After a careful examination of the existing legal framework in the domain of granting compensation to victims, it is found that only a few steps has been taken to ensure justice, either by codified laws or by government schemes to redress the issue.. There is a necessity to have a new perspective and fathom the condition and status of victims of crimes. Suitable financial aid to victims is paramount factor in providing them with their deserving status. As practised in United States, Europe and the other first world countries, the Government of India and the State Governments should adopt a new legislative measure to administer compensations, as existing statutes are insufficient to redress the grievances of the victims. Committee on Reforms of Criminal Justice System headed by Justice V. S. Malimath suggested many rights of the victims and recommended the states to make enactments for the pecuniary assistance and compensation to the victims. The Committee also focused in the need of change in existing criminal justice system. It is responsibility of Government of India and other state governments to adopt and enforce those recommendations. There should also be a change in the priority from criminal justice to victim justice, but victim justice should be perceived as complementary and not contradictory to criminal Justice. According to the penologists and criminologists, compensatory justice should be rehabilitative & restorative in nature. Compensations to the deserving only ensure the justice and liberty which is supposedly available to every Indian citizen by virtue of Constitution and it also upholds the ends of restorative justice.

11 AIR 1983 SC 1134 12 (1989) 2 SCC 600 13 (1991) 2 SCC 373 14 1990 AIR 513 15 1993 AIR 1960 16 (1997) 1 SCC 388